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Can a Date of First Delinquency be removed?

RobKnox
New Member

Can a Date of First Delinquency be removed?

This is the situation.

 

Had mortgage go late. This persisted late for 12 months. I talked to the collection department at the mortgage company and negotiated a reassessment etc. to avoid foreclosure.

 

After 12 months the account was brought current. In the intervening period I got dinged every month 

 

But by my understanding by 90 days into this saga, as the account had been sent to (internal) collections, they should have reported the date of first delinquency.

I'm looking at 632(a)(5)(A)
"A person who furnishes information to a consumer reporting agency regarding a delinquent account being placed for collection, charged to profit or loss, or subjected to any similar action shall, not later than 90 days after furnishing the information, notify the agency of the date of delinquency on the account, which shall be the month and year of the commencement of the delinquency on the account that immediately preceded the action"

And 605

"In general. The 7-year period referred to in paragraphs (4) and (6)6 of subsection (a) shall begin, with respect to any delinquent account that is placed for collection (internally or by referral to a third party, whichever is earlier), charged to profit and loss, or subjected to any similar action, upon the expiration of the 180-day period beginning on the date of the commencement of the delinquency which immediately preceded the collection activity, charge to profit and loss, or similar action."

The mortgage co. tell me there IS no date of first delinquncy as the account was brought current and stayed that way until it was sold off. 

But presumably there was one as they reported me late for 12 months.

Now they are not reporting a full  7 years of payment info, despite telling me they are obliged to do so. They are not reporiing the early dates when the account was delinquent.  

Can they just remove the DOFD?

I now have all my records showing payment dates so I can prove when the 7 year clock started.   Which is another way of tackling the issue I guess.

Message 1 of 11
10 REPLIES 10
RobertEG
Legendary Contributor

Re: Can a Date of First Delinquency be removed?

Reporting of a DOFD to a CRA is only required, as stated in the cited sections 623(a)(5) and 605(c), after the reporting of either a collection or a charge-off to a CRA, as the DOFD is then needed to determine the creditor report exclusion date of the reported collection or charge-off. 

 

Reporting of monthly delinquencies only does not require the reporting of a DOFD.

Exclusion of monthly delinquencies is covered under separate section 605(a)(5).  The DOFD reporting requirements set forth in the cited sections 623(a)(5) and 605(c) apply only to exclusion of collections or charge-offs, and section 605(c) only applies to the exclusion provisions of FCRA 605(a)(4), and not to monthly delinquencies under section 605(a)(5).

 

Simply stated, the creditor is correct in stating that they are not required to separately and specifically report a DOFD for the chain of monthly delinquencies, and thus are not precluded from deleting any such reporting.

 

You are correct that the issue can be treated in the manner described in the last paragraph of your post.

More specifically, the exclusion  of the reported monthly delinquencies is still covered by the provisions of FCRA 605(a)(5), and you can rely upon your account records to contest the lack of exclusion if the CRA fails to exclude in 7 years.

The CRA, and the CRA alone, monitors and excludes the delinquencies, and the creditor is not involved.   The creditor is not required under the FCRA to have reported a DOFD for that chain of delinquency.

 

Wait for the exclusion date to occur, and then contact the CRA if they fail to exclude.

The creditor is not involved after reporting the delinquency except if you dispute that the account was even delinquent at that time and that degree. 

Message 2 of 11
RobKnox
New Member

Re: Can a Date of First Delinquency be removed?

That first aprt makes a lot of sense.


What I can't fathom is who is removing the late months BEFORE they reach seven years.

 

For example in my report from the Summer (of 2018) The Dec 2011 entry showed 90 days late.

 

So the first 30 day late payment that would be it - at latest- October 2011. More than seven years back.


Now nothing is showing late until March 2012.

So i wonder who reported it at first - and who keeps removing the entries that would qualify for removal at 7 years.

Message 3 of 11
capty
Valued Member

Re: Can a Date of First Delinquency be removed?

Ugh, I have 2 of those right now.  Same company.  My first late on my report is a 120 day late in  Mar 2012 (both accounts).  Math says FDOD would be December.   Nope Feb 2012 and Dec 2011 say current.   I'm pretty sure it was actually more like Nov 2011, but can't say for sure.

 

Anyway, TU and EQ removed the accounts months ago, but EX is saying March 2019.    I'm letting it ride for now as it hasn't keep me from getting credit and I'm not applying for any large loans in the near future.   If by March it somehow changes again then I will pursue it more.



Start FICO Feb 2018 EQ 632/TU 617/EX 612
Score 12/12/18 EQ 675/TU 705/EX 690
02/20/19 EQ 678/TU 756/EX 753
Goals - over 750 cross the board by Dec 2019
Message 4 of 11
RobertEG
Legendary Contributor

Re: Can a Date of First Delinquency be removed?

Removal of monthly delinquencies is based on the catch-all provision of FCRA 605(a)(5), which states only that they are excluded after 7 years from their date of occurence.  No specific mention of, or requirment to report, DOFD is provided in the statutue as the basis for exclusion of monthly delinquencies.

 

However, the CRAs have interpreted section 605(a)(5) by considering the date of initial delinquency of all monthly delinquencies in a consecutive chain of delinquency as being the event that triggers running of the 7 year exclusion period of section 605(a)(5). and thus they exclude all delinquencies in a common chain at the same time, which is 7 years from the date of first delinquency.

See, for example, the detailed discussion on the EX web page of their policy for exclusion of monthly deliquencies based on the date of initial delinquency rather than 7 years from the date of each individual delinquency.

 

The rub is that, while the CRAs do use what is referred to as the DOFD in their exclusion of multiple delinquencies in a common chain, the FCRA does not require the creditor to explicitly report the DOFD to the CRA.

If you have records establishing that the DOFD of the chain of monthly delinquencies was more than 7 years ago, you can submit your proof of date of initial delinquency to the CRA,and request deletion of alll in that common chain based on their interpretation of seciton 605(a)(5).

That is between you and the CRA, and the creditor is not part of that exclusion determination.

Message 5 of 11
RobKnox
New Member

Re: Can a Date of First Delinquency be removed?

I'm not sure there.

 

Looking at my Equifax annual credit report the OC shows no data prior to dec 2011.

 

And no data after the last late payment.

 

Despite

 

a) the account staying open for 2 more years

b) their insistence in writing to me that they HAVE to report 7 years 

 

 

That sems incomplete to me.

Message 6 of 11
RobKnox
New Member

Re: Can a Date of First Delinquency be removed?

If the information is incomplete, you point this out,  and they still report it, isn't that a violation?

 

623(a)(2)(b)

"has furnished to a consumer reporting agency information that the person determines is not complete or accurate, shall promptly notify the consumer reporting agency of that determination and provide to the agency any corrections to that information, or any additional information, that is necessary to make the information provided by the person to the agency complete and accurate, and shall not thereafter furnish to the agency any of the information that remains not complete or accurate"

 I say missing data = not complete

Message 7 of 11
Kree
Established Contributor

Re: Can a Date of First Delinquency be removed?


@RobKnox wrote:

I'm not sure there.

 

Looking at my Equifax annual credit report the OC shows no data prior to dec 2011.

 

And no data after the last late payment.

 

Despite

 

a) the account staying open for 2 more years

b) their insistence in writing to me that they HAVE to report 7 years 

 

 

That sems incomplete to me.


Maybe I'm misunderstanding, but 2011 was 7 years ago? so anything before 2011 is removed by the CRA?

Message 8 of 11
RobKnox
New Member

Re: Can a Date of First Delinquency be removed?

You've pretty much hit on the nub of my issue there.

 

The account went delinquent in Sep 2011.


So - my understanding is that the whole series of late payments (in an unbroken chain) would be removed 7 years from the first one. (According to Experian and Tranunion from their posted info)

BUT reported late months keep dropping off my report before they get to seven years.

 

So I have been trying to nail down the date the account first went delinquent.


It seems the Experian FAQ use of DOFD isn't quite the same as the FCRA date.

 

The OC sweart they have to report seven years of data. But currently if I look at the entries for seven years ago - no data. Despite them having previously HAD data. (There's also no "On time" data after Sep 2012- despite the account being current from then through 2014).


It's all rather annoying.

 

 

Message 9 of 11
RobertEG
Legendary Contributor

Re: Can a Date of First Delinquency be removed?

The FCRA does not explicitly state how monthly delinquencies become excluded.

FCRA 605(a) sets forth, in subsections (1) through (5), details of how any adverse item of information becomes excluded.

Subsections 605(a)(1) through 605(a)(4) relate to specific types of derogs, and defines their unique exclusion provisions, and then subsection 605(a)(5) provides a catch-all provision that covers "any other adverse item of information."

Monthly delinquencies dont have their own explicit subsection, and thus fall under subsection 605(a)(5).

 

Subsection 605(a)(5) states that the exclusion period is 7 years, but since it is designed to broadly cover any other adverse information, does not provide an explicit begin date for the 7 year exclusion period.  It is thus subject to interpretation as to what is the begin date for exclusion of individual monthly delinquencies.

One interpretation is that each reported monthly delinquency is its own adverse item of information, and thus each individual monthly delinquency must be excluded no later than 7 years from its individual month/year of occurence.

The second interpretation is that it is the delinquency itself which is the adverse item of information, and that delinquency occurs on the first date of delinquency, with later reported delinquencies in that same chain only being an extension of the same delinquency.

Thus, section 605(a)5) is interpreted as requiring exclusion of all delinquencies in a common chain no later than 7 years from the date of first delinquency.

 

 

When a statute is broad, it can be subject to differing interpretations unless and until an appeals court provides a binding case law interpretation, and then that interpretation becomes binding legal precedent, but only in the jurisdiction of courts under that appellate court.

 

To date, there is no appellate case law that provides uniform precedent establishing a clear and consistent exclusion interpretation.

EX provides its own interpretation on its web site, which is the exclusion of all monthly delinquencies in a common chain at 7 years from the date of initial delinquency.  However, that is not consistently applied by all CRAs, and additionally there is evidence that EX sometimes does not follow its own published policy.

 

In the posted scenario, it is stated that the CRA has excluded earlier delinquencies in a chain if the delinquencies are more than 7 years ago, while the CRA is still showing some delinquencies in that same chain that have a month/year that has not yet reached 7 years.

Since the creditor is not required to separately report the DOFD, and since the credit report no longer shows the delinquency that was the initial delinquency, the post asserts an inability to determine the date of first delinquency for the common chain.

 

If the CRA has excluded earlier delinquencies but is still showing later delinquencies, that can certainly be a problem if exclusion of all delinquencies in the chain is being argued.

You can, however, still obtain the date of the reported initial delinquency from the CRA by use of FCRA 609(a), which permits the consumer to obtain any information of record in their credit file.  It is used when a commercial credit report does not provide the information that is sought.

When a CRA excludes information based on any of the exclusion provisions of FCRA 605(a), the information is not deleted from the consumer's credit file.  It is only excluded from credit reports provided to parties other than the consumer.

FCRA 609(a) provides ability of the consumer, upon providing proof of their identity and payment of the current prcessing fee of $11.50, to file a request with the CRA and obtain that normally excluded information.

 

If you wish to pursue an argument that all delinquencies in a common chain must become excluded no later than 7 years from the date of initial delinquency, and you cannot get the date of initial delinquency from your report because it has become excluded by the CRA, then file a request under FCRA 609(a) for that information.

Message 10 of 11
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